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34 Sydney L. Rev. 637 (2012)
Some Problems with Extrajudicial Writing

handle is hein.journals/sydney34 and id is 643 raw text is: Some Problems with
Extrajudicial Writing
Susan Bartie and John Gava*
Since the Second World War, judges in Australia and the United Kingdom have
increasingly written legal articles and textbooks. The purpose of this article is to
test current dogma, which paints as innocuous the practice of extrajudicial
writing on points of law, by showing that there are some very real problems
raised by the practice; problems that threaten the integrity of the judiciary. We
argue that committed writing by sitting judges amounts to prejudging of
potential legal issues, and acts as a signal to potential litigants. It is also argued
that committed extrajudicial writing differs in its effects to holdings in previous
cases: that it is different in fundamental ways from the writing of academics
who subsequently become judges or the advocacy of barristers and solicitors
who go on to become judges, and that its contemporary prevalence is not a
measure of its appropriateness. Finally, we will offer a solution to the problems
that we have identified: judicial silence.
...I have been surprised (to use a mild word) at the increasing number of
articles and speeches by judges, especially Supreme Court Justices, in the past
20 years in which they discuss all sorts of issues that seem likely to come
before them.'
I      Introduction
In this article we argue that the practice of sitting judges discussing live legal
issues in legal literature raises serious problems. In particular we argue that such
writing in learned journals and in legal textbooks amounts to 'prejudging' as
defined by the law of apprehended bias in the United Kingdom and Australia. As
Lucy notes, central to the notion of impartiality in adjudication is that judges
have an attitude of 'openness to and lack of pre-judgment upon the claims of the
disputants.'2 The danger stemming from published writing about a legal issue is
that the judge is tied to an answer to the legal problem and holds a stake in the
intellectual outcome. Rather than possessing general thoughts or beliefs about a
* Lecturer, Law School, University of Tasmania and Reader, Adelaide Law School, University of
Adelaide. We would like to thank Paul Babie, Janey Greene, Anne Hewitt, John Keeler, Suzanne
LeMire, Anna Olijnyk, Alexander Reilly, Andrew Stewart, Matthew Stubbs, Adam Webster, four
anonymous referees and the solicitor and barristers who provided some of the initial impetus for
this article.
Andrew Kaufman, 'Judicial Ethics: The Less-often Asked Questions' (1989) 64 Washington Law
Review 851, 867.
2 William Lucy, 'The Possibility of Impartiality' (2005) 25 OxfordJournal ofLegal Studies 3, 15.

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